Motion for Summary Affirmance and Other Relief

     [||813b74db-1b38-491c-bb93-72b9813ae74a||] b 4 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

NO. 29165 

REBECCA E. HENRY, et al., 

Plaintiffs-Appellants~-Cross 
Appellees, 

VS. 

THE CLARKSDALE MUNICIPAL SEPARATE 
SCHOO. DISTRICT, et al., 

Defendants-Appellees-Cross 
Appellants. 

N
a
r
”
 N
au
?”
 N
a
”
 N
t
”
 
aa
?”
 N
u
 
N
t
 
u
t
 
u
e
 
a
 

w
s
”
 
a
t
 
a
t
 
u
s
’
 

MOTION FOR SUMMARY AFFIRMANCE 
AND OTHER RELIEF 

Plaintiffs-Appellants, pursuant to Rule 19 of the 

Local Rules of the United States Court of Appeals for the 

Fifth Circuit, ‘hereby move this Court to summarily affirm, 

to the extent noted below, the orders from which defendants 

cross-appeal and sopeal.il Defendants' cross-appeal and 

appeal are "so lacking in merit as to be frivolous and sub- 

2/ ject to dismissal or affirmance without more."= 

1/ =~’ Defendants have filed a cross-appeal from the order 
of the United States District Court for the Northern Dis- 
trict of Mississippi, dated January 10, 1970, appended here- 
to as Exhibit "A". As to this order plaintiffs-appellanis 
have filed an appeal and Motion for Summary Reversal, ob- 
jecting to the failure of the district court to adhere to 
the clear holdings of Carter and Alexander and permitting 
segregation of 7 of 12 grades beyond February 1, 1970. 

The defendants have also filed an appeal from the order 
of the district court dated January 10, 1970, appointing a 
special master to develop a viable long range plan of deseg- 
regation for the district; this second order is appended 
hereto as Exhibit "B". 

2 vovohy ve Howe Well Senvice, 409 F.24.204, 206 (5th 
cir. 190550 



® * 

I 

DEFENDANTS-APPELLEES CROSS APPEAL 

1. Defendants cross-appeal attacks the district court 

for complying with the February 1, 1970 relief this Court 

ordered in Singleton v. Jackson Municipal Separate School 

District, No. 26285, December 1, 1969, (en banc school cases); 

2. Defendants cross-appeal also challenges the district 

court's order directing changes in the plan of desegregation 

condemned by this Court in Henry v. Clarksdale Municipal 

Separate School District, 409 F.2d 682 (5th Cir. 1969); 

3. Defendants cross appeal also challenges the dis- 

trict court's holding that a dual racial system prevails in 

the Clarksdale School District; 

4. Singleton was a unanimous, per curiam, and en banc 

decision of this Court and it is utterly frivolous for de- 

fendants to urge this Court to consider that recent decision 

anew; 

5. The record in this case shows conclusively that a 

dual racial system prevails in Clarksdale and that a new 

plan of desegregation is required: not a single black child 

is assigned to white schools; only a token number of whites 

are assigned to black schools; no black teachers are assigned 

to white schools; only eight white teachers are assigned to 

the six black schools; there have been no inter-scholastic 

activities among white and black schools. The district 

court's findings with respect to the existence of a dual ra- 

cial system are clearly correct and supported by the record 

and no issue can be raised by defendants-appellees; 

3/ =/ See interrogatories and answes thereto dated August 
28, 1969 and transcript of proceedings, January 9-10, 1970, 
pp. 107-108 7.131, . 



® ® 

6. As plaintiffs-appellants Motion for Summary Reversal 

filed in this Court demonstrates, the district court did not 

order enough. Alexander and Carter require complete integra- 

tion of all students and faculty by February 1, 1970 and it 

is frivolous for defendants to argue that nothing should have 

been ordered effective February 1, 1970. 

i 4 

DEFENDANTS-APPELLEES APPEAL 

7. Defendants'-Appellees appeal challenges the order 

of the district court appointing a special master to pre- 

pare a plan of desegregation, (Exhibit "B" hereto); 

8. The district court's order (Exhibit "A" hereto, 

page 6) provides that "both plaintiffs and defendants shall 

have the right to file objections to the master's report 

within ten days after it is filed. . . and the court shall. . . 

schedule evidentiary hearings to consider the master's report, 

[and] objections thereto, . . ." 

It is, therefore, manifestly clear that the district 

court's appointment of a special master in no way undermines 

or curtails any right or interest of defendants; it merely 

provides a mechanism to assure that the district court will 

be able to adopt a long range plan of desegregation in the 

event defendants fail to provide a viable alcevnntiver dl 

9. There are no rights or interests of defendants even 

remotely affected by the district court's Order of Reference 

to Special Master and defendants appeal is frivolous. 

4/ The district court's appointment of a special master 
might prove to be a sound alternative and supplement to HEW 
plans of desegregation. The court in Brown I and II con- 
sidered whether it "should appoint a special master to hear 
evidence with a view to recommending specific terms for . . . 
decrees,” 347 U.S. 483, 495, fn. 13 (1034). 



$i * 

WHEREFORE, plaintiffs-appellants (and plaintiffs-cross 

appellees) move this Court to: 

1. order defendants to respons to this motion no later 

than February 9, 1970; 

2. summarily affirm the district court's order of 

January 10, 1970, to the extent that it adheres to the de- 

cision and order of this Court in Singleton v. Jackson 

Municipal Separate School District, No. 26285, December 1, 

1069; 

3. summarily affirm the Order of Reference to Special 

Master, January 10, 1970, to the extent that it appoints 

a special master to develop a plan of desegregation for the 

defendant school distaion of 

4, order the mandate to issue immediately; 

5. grant such additional or alternative relief as the 

court deems just and equitable. 

February 4, 1970 espectfully submitted, 

MELVYN R. LEVENTHAL 
REUBEN V. ANDERSON 
FRED lL. BANKS, JR. 

538% North Farish Street 
Jackson, Mississippi 39202 

JACK GREENBERG 
NORMAN CHACHKIN 
JONATHAN SHAPIRO 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 

Counsel for Plaintiffs-Appellants 
Cross Appellees 

5/ - =’ The Order of Reference to Special Master directs that 
a plan be submitted effective for the September, 1970 school 
year. Plaintiffs'-Appellants' Motion for Summary Reversal 
seeks a plan of desegregation effective February 15, 1970, 
and to the extent that the Order of Reference to Special 
Master might be inconsistent with such immediate relief it 
should be summarily reversed. 



CERTIFICATE OF SERVICE 

I hereby certify that on this 4th day of February, 

1970, I caused to be served by United States mail, post- 

age prepaid, a copy of the foregoing Motion For Summary 

Affirmance and Other Relief and Appendix thereto upon 

Semmes Luckett, Esquire, 121 Yazoo Avenue, Clarksdale, 

Mississippi 38614. 

| LIT Oe 
MERVYN FR. LEVENTHAL 



| 
] 

® * Wa W ® 

hh Br A 
IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF MISSISSIPPI 

DELTA DIVISION 

REBECCA E. HENRY, ET AL, Plaintiffs 

Ve NO. DC 6428-K 

CLARKSDALE MUNICIPAL SEPARATE SCHOOL 
DISTRICT, ET AL, Defendants 

ORDER 

In obedience to the mandate of the United States Court 

of Appeals for the Fifth Circuit remanding this cause for a 

hearing to determine the constitutional sufficiency of the 

school desegregation plans in force i the Clarksdale Municipal 

Separate School District, and the court of its own motion having 

heretofore ordered the United States Office of Education, 

Department of Health, Education, and Welfare, to prepare, after 

due consultation with defendants, a new desegregation plan; 
ix 

and all parties having appeared in court and announced their 

readiness for trial, and after the introduction of evidence, 

oral and documentary, and arguments of counsel, and the court 

having delivered from the bench its findings of fact and or 

clusions of law; it is 

ORDERED 

1. That the defendant Board of Trustees, its Superin- 

tendent, administrators, ents and representatives, are hereby 

commanded and enjoined no longer to operate a dual school Syster 

based upon geographic zoning and they must begin immediately. to 

operate a unitary school system within which no person is to be 

effectively excluded from any school because of race or color, 



5 * 

. 

as required by the Supreme Court decision of Alexander v. 

Holmes County Board of Education, 1969, 24 L. Ed. 24 19. 

2. That the School Board is ordered to take the 

following action not later than February 1, 1970: Ty 

DESEGREGATION OF FACULTY AND OTHER STAFF 

The School Board shall announce and implement the 

following policies: 

(1) Effective not later than February 1, 1970, the 

principals, teachers, teacher-aides and other staff who work 

directly with children at a school shall be so assigned that 

in no case will the racial composition of a staff indicate that 

a school is intended for Negro students or white students. 

For the remainder of the 1969-70 school year the district shall 

assign the staff described above so that the ratio of Negro to white 

teachers in each school, and the ratio of other staff in each, 

are substantially the same as each such ratio is to the teachers 

and other staff, etpestbydiy, tn the entire school syston 43 

The school district shall, to the extent ALY 

carry out this desegregation plan, Zitat members of its staff 

as a condition of continued employment to accept new assignments. 

(2) Staff members who work directly with chil aneh Liang 

professional staff who work on the administrative level will be 

hired, assigned, promoted, paid, demoted, dismissed, and other- 

wise treated without regard to race, color, or national origin. 

(3) If there is to be a reduction in the number of 

principals, teachers, teacher-aides, or other professional staff 

employed by the school district which will result in a dismissal 

or demotion of any such staff members, the staff members to be 



} 
i 
H 

H 

i 

f 
! 
i 
1 

| 
H 
i 
} 

dismissed or demoted must be selected on the basis of objective 
7 
/ 

and reasonable non-discriminatory standards from among all the 

staff of the school district. In addition if there is any such 

dismissal or Ahan no staff vacancy may be filled through 

recruitment of a person of a race, color, or national origin 

different from that of the individual dismissed or demoted, 

until each displaced staff senbey. who is qualified has had an 

opportunity to fill the vacancy and has failed to accept an 

offer to do so. 

Prior to such a reduction, the school board will develop 

or require the development of nonracial objective criteria to 

be used in selecting the staff member who is to be dismissed 

or demoted. These criteria shall be available for public in- 

spection and shall be retained by the school district. The 

school district also shall record and preserve the evaluation 

of staff members under the criteria. Such evaluation shall be 

made available upon request to the dismissed or demoted employee. 

"Demotion" as used above inclades any pensaimisntl o 

(1) under which the staff member receives less pay or has less 

responsibility than under the assignment he held previsasi; 

(2) which requires a lesser degree of skill than did the assign- 

ment he held previously, or (3) under which the staff members is 

asked to teach a subject or grade other than one for which he 

is certified or for which he has had substantial experience 

within a reasonably current period. In general and depending _ 

upon the subject matter involved, five years is such a reasonable 

period. 

7 



ed 

: MAJORITY TO MINORITY TRANSFER POLICY 

| The school district shall permit a student attending 

a school in which his race is in the majority to choose to 

attend another school, where space is available, apd where 

his race is in the minority. 

SCHOOL CONSTRUCTION AND SITE SELECTION 

All school construction, shall consolidation, and site 

| : selection (including the location of any temporary classrooms) 

| in the system shall be done in a manner which will prevent the 

: recurrence of the dual school structure once this desegregation 

¥ plan is implemented. 

ATTENDANCE OUTSIDE SYSTEM OF RESIDENCE 

If the school district grants transfers to students 

living in the district for their attendance at public schools 

ai
e 

a 
n
t
 e
i
 

a
l
 e

r i
 
S
a
i
 a
me
 

| outside the district, or if it permits transfer into the district 

of students who live outside the district, it shall do so on a 

non-discriminatory basis, except that it shall not consent "t. 

transfers where the cumulative effect wi12 reduce desegregation 

in either district or reinforce the dual school system. 4 

4. That defendants are further enjoined and commanded 

to take such preliminary steps as may be necessary to prepare 
¢ 

for complete student desegregation by February 1, 1970, in. 
/ 

/ 

accordance with the order of the Supreme Court in Carter v. West 
V, 

/ 

Feliciana Parish School Board, 1969, =—-=-~ U.S.---, ---S. col Te 

--- L. Ed. 2d --- (No. 944, October Term) in the event student 

desegregation by February 1, 1970, is required by the Supreme 

Court; otherwise, full student desegregation may be postponed 
Yd 

/ 

until September 1, 1970. If student desegregation is to be 



- % “ 

effective by February 1, 1970, such plan for the Clarksdale 

Municipal Separate School District for the second semester of 

1969-70 and anil fhbiher order of this court shall be as 

follows: 
J 

(a) A single senior high school shall be established 

in the buildings that now constitute the Clarksdale Senior Int 

Junior High Schools, made up as follows: grades 10, 11 and 12 

from Higgins Senior High School and Clarksdale Senior High 

School, and 55 the present 9th grade in Clarksdale Junior 

High School. 

(b) A single junior high school shall be established 

in the piildings that now constitute Higgins Jr.-Sr. High 

SohosY ai the Oliver Elementary School, made up as follows: 

Grades 7, 8 and 9 from Riverton Junior High School, Higgins 

Junior High School and grades 7 and 8 from Clarksdale Junior 

High School. : SiH 

{c) Elementary pupils in grades 1 through 6 presently 

attending Oliver Elementary School who are displaced by the 

i. 

above assignment, shall be assigned either to Myrtle Hall» 

Elementary School or Riverton Junior High School in accordance 

with proximity of students' residence. = 

(d) The remainder of the elementary schools, grades 

1 through 6, shall remain unchanged. : 

5. It is further ordered that because of the unusual 

complexities of the Clarksdale school situation, prctleniohay | 

due to the location of its various elementary schools, a special 

master be appointed to make full study and proper recommendations 

for student desegregation in all grades for the 1970-71 schoo! 

year as a result of all relevant data, and the special maste 



. 
4 # 

: Mi rd 
[ 

shall consider further suggestions and plans offered by the 

Board of Trustees, the proposals made by the Department of 

HEW as well as the suggestions and views of a bi-racial 

advisory committee of the Clarksdale community to be created 

as hereinafter described. Dr. Forrest W. Murphy of Aberdeen, 

Mississippi, is hereby appointed special master, and in its 

separate order of reference entered pursuant to ¥ . R.Civ. P., 

Rule 53, the court shall set forth the applicable constitutional 

requirements for an acceptable plan. Said report shall be filed 

. not later than March 1, 1970, unless, for good cause shown, the 

time is extended. Both plaintiffs and defendants shall have 

the right to file objections to the master's report within ten 
{ > 

days after it is filed with the clerk of this court, and the 

court shall, without delay, schedule evidentiary hearing to; 

consider the master's report, objections thereto, and order 

full implementation of the new plan. 

PE is further ordered and directed that there be 

S
R
P
 
—
 

formed a bi-racial advisory committee composed of 11 persons 

in the Cyavksdnle community, one of whom shall be selected 

by the parent-Teachers Association or equivalent organized” 

school patron body, from each of the district's 11 schools as 

heretofore constituted, designed as follows: 
/ 

of Clarksdale Senior High School 1 representative 

; Higgins Jr.-Sr. High School 1 representative 

/ Riverton High School 1 representative 

pr Clarksdale Junior High School 1 representative 

4 Riverton Elementary School 1 representative 
Oakhurst Elementary School 1 representative 

Oliver Elementary School 1 representative 

Kirkpatrick Elementary School 1 representative 

Heidleberg Elementary School 1 repre-entative 

Myrtle Hall Elementary School 1 representative 

Booker T. Washington Elementary 

School 1 representative 

The person so selected shall be a patron of the school that he 

or she represents. The Superintendent of the School District 

iC 



shall immediately notify the president of each PTA, or equiva- 

lent body, as to this directive and request that a meeting of 

the association be called without delay, and that the associa- 

tion select a patron-representative to serve on the bi-racial 

Ravi sony committee. Selections to this committee by the school 

patron organizations shall be completed not later than January 

23, 1970. On that date ihe atvizosy committee shall meet, at 

a time and place fixed by the Superintendent of Schools, and 

shall elect its own: officers. The Superintendent of the 

District Schools Stet promptly notify the court of the name, 

7 ; 
address and school represented by each committee member. The 

advisory’ committee shall be charged with responsibility of 
/ 

/ 
meeting from time to time upon call of its chairman or vice- 

chairman to: (a) consider and discuss all aspects of pupil 

desegregation of the Clarksdale schools; (b) initiate proposals . 

and suggestions reflecting the views of
 the school patrons 

/ 
in reference thereto; and (c) to meet with representatives of 

“® , : 

the School Board and the special master for consideration and 

action upon such proposals as may be advanced by members of 

the committee or by the School Board or by the special master. 

To the extent that they do not conflict with constitutional 

requirements, the special master shall consider the views of 

both the advisory committee and the School Board in the making 

of his final report and recommendations. Es 

The court retains Sunixniceion of this cause for the 

purpose of granting such supplemental or additional orders as 

may be necessary. 

This, 10th day of January, 1970. 

vd 
e - 

sn yp 
\ A ho WY JTL —e® rs. Lo ~— -n 

rd rd 
Z 

United States District Court 



: 

t i 
{ 

| 

hl » 
Sid TR 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF MISSISSIPPI 

DELTA DIVISION 

REBECCA EF. HENRY, ET AL, Plaintiffs 

Ve NO. DC 6428-K 

CILARKSDALE MUNICIPAL SEPARATE SCHOOL 

DISTRICT, ET AL, . Defendants 

ORDER OF REFERENCE TO SPECIAL MASTER 

In accordance with § 5 of provisions of a separate 

order of even date herewith, the court does hereby appoint 

Dr. Forrest W. Murphy of Aberdeen, Missisippi, as Special 

Master, and refers to him the task of aiding the court to 

develop a new student desegregation plan applicable to all 

12 grades of the Clarksdale Municipal Separate School District, 

effective for the school year beginning September 1970 ands 

thereafter. Said plan must produce a unitary school system 

in which no child is effectively excluded from attending any 

school because of his race or color; and, to be const lEuetbnal, 

the plan must provide for no schools attended solely by Negro 

students and no formerly all-white schools attended only ny a 

small number of Negro students; that is, there must not ws 

"white"schools or "Negro" schools, but just schools. 

Subject to the above constitutional requirements, ‘he 

Special Master shall determine and recommend to the court the 

following: HY 

l. What should be the organizational structure of the 

Clarksdale school system, considering size and location of its 

existing school buildings and facilities, the number and race 



f 

4 
i 

1 
} 

t : 

1 
i 

of students to be enrolled, and the necessity for having student 

desegregation in each of the schools. 

2.. In event of a slvigle senior high school to serve 

the entire school district, what buildings should be so utilized 

and what grades should be constituted therein. 

3. In the event of a single junior high school to serve 

the entire school district, what buildings should be so ubivized 

and what grades should be constituted therein. 

4. In case the buildings so utilized in recommendations 

2 and 3 above do not adequately resolve the issue, what specific 

use should be made of Riverton Junior High School and what grad
es 

should be assigned so as to make it a desegregated school. 

5. Fn what manner should students be assigned in the 

various elementary schools in order to accomplish student 

desegregation. 

In the performance of his duties, the Special Master 

shall have all of the powers prescribed by Rule 53(c) of the 

¥. R. Civ. B., and ne shall be entitled to reasonable fonpiines 

tion for his services and reimbursement of expenses, to be ‘paid 

by the Clarksdale Municipal Separate School District in such 

manner as the court may direct. The said Master shall, at a 

time and place to be fixed by him in Clarksdale, Mississippi, 

on January 23, 1970, hold an initial meeting with the Board of 
. 25 
AE 

Trustees of the Clarksdale Municipal Separate School District, 

its Superintendent and the bi-racial advisory committee fried 

by the 11 Parent-Teachers Associations from the district's 11 

schools, and at such meeting the Master shall explore different 

alternatives under consideration. Prior to the ‘date of said 

meeting, the Master shall familiarize himself with the desegre- 



gation proposal submitted by the Department of Health, Education, 

and Welfare, as well as suggestions made by any interested 

party. The said MasEey hal thereafter make such studies and 

surveys, both in consultation with and independently of the 

Board of Trustees of the School District and its Superintendent 

and the bi-racial advisory committee, and his report shall be 

filed in triplicate with the ‘clerk of this court by March 1, 

1970, unless, for good cause shown, extension be granted by 

| the court. 

This, 10th day of January, 1970. 

| Chief Judge Zl 
| United States District Court [||813b74db-1b38-491c-bb93-72b9813ae74a||]